Citation Nr: 9909954
Decision Date: 04/09/99 Archive Date: 04/29/99
DOCKET NO. 98-08 472 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUE
Entitlement to Dependency and Indemnity Compensation (DIC)
pursuant to 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: The appellant's son
WITNESSES AT HEARING ON APPEAL
The appellant and her son
ATTORNEY FOR THE BOARD
Mark E. Goodson, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1950 to
November 1953. He died on May [redacted], 1995. The
appellant is his widow.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an October 1997 decision by the RO that denied
the appellant's claim of entitlement to DIC under the
provisions of 38 U.S.C.A. § 1151. In February 1999, the
undersigned Member of the Board conducted a hearing at the
RO, during which the appellant and her son testified (Travel
Board hearing).
REMAND
A synopsis of the salient facts follows. On May 8, 1995, the
veteran entered the VA Hospital (VAH) in Charleston, South
Carolina (VAH Charleston), in order to undergo a
transurethral resection of a bladder tumor, which was
scheduled for May 17, 1995. On May 17, 1995, at 6:20 a.m.,
shortly prior to the scheduled surgery, a physician entered
an order permitting the veteran to take a shower, without his
telemetry monitor attached. At approximately 6:50 a.m.
(there is some conflict in the evidence as to the precise
time), another patient discovered the veteran in the shower
room, apparently unconscious, and with a laceration of the
right side of his head. VAH Charleston personnel arrived
shortly thereafter, performed cardiopulmonary resuscitation,
and restored a heartbeat. However, the veteran had
experienced cerebral anoxia and cardiac arrest, and slipped
into a coma. Unfortunately, on May [redacted], 1995, the
veteran died. His widow now claims DIC pursuant to 38
U.S.C.A. § 1151.
This case must be remanded because the claims file does not
contain all of the pertinent VA treatment records. See Bell
v. Derwinski, 2 Vet. App. 611 (1992). In particular, the
veteran was hospitalized at VAH Charleston from May 8, 1995
to May [redacted], 1995, but the VAH Charleston inpatient
records in the file are predominantly records dated from
May 15 to May [redacted], 1995. Moreover, it is unclear
whether even those records are complete, given that they were
submitted by the appellant's representative and not the VAH
Charleston. As to VA outpatient treatment records, certain
evidence in the file indicates that, at the time of the veteran's
death, he had only recently been diagnosed as having congestive
heart failure. See, e.g., the May 1995 VA hospitalization
summary (referring to a recent onset of congestive heart failure);
and a Statement of Facts prepared for proceedings relating to
the appellant's tort claim against VA (referring to a March
20, 1995 VA electrocardiogram study and VA outpatient
treatment on April 11, 1995). Some of the VA outpatient
records pertaining to his cardiopulmonary treatment are
mentioned, but are not in the file. See id. Such records
are pertinent here because the certified cause of the
veteran's death was anoxic encephalopathy due to (or as a
consequence of) cardiac arrest, with chronic obstructive
pulmonary disease and atrial flutter listed as significant
conditions contributing to death. See also 38 C.F.R. § 3.358
(1998). Thus, a remand is warranted in order to obtain this
additional evidence. 38 C.F.R. § 19.9 (1998).
Also, the Board notes that neither the October 1997 rating
decision nor the April 1998 statement of the case contains a
recitation to the statute which provides the substantive
basis of the appellant's claim, 38 U.S.C.A. § 1151. This is
significant due to recent changes in the law applicable to
compensation claims under Section 1151, and thus some
discussion of those changes is warranted.
The governing statutory law for claims of this sort is set
forth at 38 U.S.C.A. § 1151. When the appellant first filed
her claim in April 1997, that statute provided, in pertinent
part, that when a veteran suffers injury or aggravation of an
injury as a result of VA hospitalization or medical or
surgical treatment, not the result of the veteran's own
willful misconduct or failure to follow instructions, and the
injury or aggravation results in additional disability or
death of such veteran, then compensation, including
disability, death, or dependency and indemnity compensation,
shall be awarded in the same manner as if the additional
disability or death were service connected. 38 U.S.C.A.
§ 1151 (West 1991). As explained in more detail below, this
version of Section 1151 still applies here.
The regulations implementing 38 U.S.C.A. § 1151 appear at 38
C.F.R. §§ 3.358, 3.800. They provide, in pertinent part,
that, in determining whether additional disability exists,
the veteran's physical condition immediately prior to the
disease or injury on which the claim for compensation is
based is compared with the physical condition subsequent
thereto. 38 C.F.R. § 3.358(a) (1998). With regard to
medical or surgical treatment, the veteran's physical
condition prior to the disease or injury is the condition
which the medical or surgical treatment was intended to
alleviate. 38 C.F.R. § 3.358(b)(1). Compensation is not
payable if additional disability or death is a result of the
natural progress of the injury or disease for which the
veteran was hospitalized. 338 C.F.R. § 3.358(b)(2).
Further, the additional disability or death must actually
result from VA hospitalization or medical or surgical
treatment and not be merely coincidental therewith.
38 C.F.R. § 3.358(c)(1), (2). In addition, compensation is
not payable for the necessary consequences of medical or
surgical treatment properly administered with the express or
implied consent of the veteran or, in appropriate cases, the
veteran's representative. "Necessary consequences" are those
which are certain or intended to result from the VA
hospitalization or medical or surgical treatment. 38 C.F.R.
§ 3.358(c)(3).
In order to avoid any possible misunderstanding as to the
governing law in this case, the Board notes that in Brown v.
Gardner, 115 S.Ct 552, the United States Supreme Court held
that an earlier version of 38 C.F.R. § 3.358(c)(3) was
invalid because the earlier version required evidence of
fault on the part of VA or the occurrence of an accident or
otherwise unforeseen event. Brown v. Gardner, 115 S.Ct. 552,
(1994), aff'g 5 F.3d 1456 (Fed. Cir. 1993), aff'g Gardner v.
Derwinski, 1 Vet. App. 584, 586-88 (1991). In March 1995,
the Secretary of VA published an interim rule amending
Subsection 3.358(c) to conform to the Supreme Court decision.
That amendment was made effective November 25, 1991, the date
of the Gardner decision by the United States Court of Appeals
for Veterans Claims (known as the United States Court of
Veterans Appeals prior to March 1, 1999). 60 Fed. Reg.
14,222 (Mar. 16, 1995). The interim rule was later adopted
as a final rule, 61 Fed. Reg. 25,787 (May 23, 1996), and
codified at 38 C.F.R. § 3.358(c) (1998). The final version
of the regulation, as set forth in the preceding paragraph,
requires no showing of fault on the part of VA in order to
establish entitlement to compensation under Section 1151.
Recently, Congress amended the above-cited version of 38
U.S.C.A. § 1151, effective for claims filed on or after
October 1, 1997, to preclude benefits in the absence of
evidence of VA negligence or an unforeseen event. Pub. L.
No. 104-204, § 422(a), 110 Stat. 2926 (1996); see also
VAOPGCPREC 40-97 (Dec. 31, 1997). Here, the appellant filed
her claim with VA in April 1997. Thus, it must be
adjudicated pursuant to the earlier version of 38 U.S.C.A.
§ 1151 and the May 23, 1996, final version of 38 C.F.R.
§ 3.358, as set forth above.
This case is REMANDED for the following actions:
1. The RO should contact the appellant
and inform her that she may submit
additional evidence in support of her
claim. The RO should tell her that the
best type of evidence is evidence from
a physician or other medical authority
which would tend to show that the
veteran suffered injury (or aggravation
of an injury) as a result of VA
hospitalization or medical treatment,
or as the result of having submitted to
a VA examination, and that such injury
or aggravation resulted in the
veteran's death. In particular, she
may wish to submit additional opinion
evidence from competent medical
authority explaining how any lack of VA
supervision, when the veteran entered
the shower on May 17, 1995, resulted in
his death; or supporting any other
theory that has been advanced by the
appellant regarding the cause(s) of the
veteran's death. See 38 U.S.C.A.
§ 1151 (West 1991); 38 C.F.R. § 3.358
(1998). The RO should allow the
appellant a reasonable time within
which to submit such evidence. All
materials obtained should be associated
with the file.
2. The RO should take reasonable steps
to obtain all records of outpatient
treatment provided to the veteran by
the VA Medical Center in Charleston,
South Carolina, dated from May 1994 to
May 1995. The RO should also take
reasonable steps to obtain all
inpatient treatment records for the
period of the veteran's hospitalization
at the VA Hospital in Charleston, South
Carolina, from May 8, 1995 to May [redacted],
1995. The request for records should
specifically include hospital
summaries, operative reports,
laboratory reports, diagnostic testing
reports (including radiographic
reports), radiographic films (including
all CT scan(s) and x-ray(s)), doctors'
orders, nurses' notes, and medication
records-in short, all documentation
created during the veteran's
hospitalization. All records obtained
should be associated with the claims
folder.
3. Thereafter, the RO should take
adjudicative action on the appellant's
claim of entitlement to Dependency and
Indemnity Compensation pursuant to
38 U.S.C.A. § 1151 (West 1991), as that
statute existed prior to its amendment
in October 1996. VAOPGCPREC 40-97. If
the benefit sought remains denied, then
the RO should issue a supplemental
statement of the case that addresses
all evidence, including that received
since issuance of the April 1998
statement of the case. The
supplemental statement of the case
should specifically refer to applicable
law and regulations.
After the appellant and her representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review. No action is required by the
appellant until she receives further notice. The purposes of
this remand are to procure clarifying data and to comply with
the governing adjudicative procedures. The Board intimates
no opinion, either legal or factual, as to the ultimate
disposition of the appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MARK F. HALSEY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1998).